Issue: № 1, 2026
Doi: https://doi.org/10.37634/efp.2026.1.15
The paper provides a comprehensive scientific and legal analysis of the institution of subsidiary liability and the doctrine of lifting the corporate veil in German law as one of the most developed and conceptually balanced mechanisms for reconciling the principle of limited liability of a legal entity with the imperative of effective protection of creditors’ rights. The study focuses on the exceptional nature of these legal instruments and their role in counteracting abuses of the corporate form that undermine the foundations of civil turnover and economic stability. The paper examines the doctrinal foundations of Durchgriffshaftung as a legal response to situations where the formal separation between a company and its participants or management is used in bad faith. Particular attention is devoted to the genesis and subsequent evolution of the concept of liability for the intentional destruction of a company’s economic basis (Existenzvernichtungshaftung), as developed in the case law of the German Federal Court of Justice. The research traces the gradual transformation of this concept from a quasi-corporate liability mechanism into a construction grounded in general tort law, which significantly influenced its scope and practical application. Special emphasis is placed on the analysis of landmark judicial decisions (including Autokran, Bremer Vulkan and Trihotel), which played a decisive role in shaping the limits, criteria and legal nature of subsidiary liability in German jurisprudence. It is argued that the judicial reorientation of Existenzvernichtungshaftung towards tort liability contributed to preserving the autonomy of legal entities, strengthening legal certainty and predictability, and preventing an unjustified and arbitrary expansion of liability of shareholders and corporate managers. The paper concludes that the modern German model of subsidiary liability functions as an exceptional corrective instrument applied only in cases of manifest abuse of rights and gross violation of the principle of good faith (Treu und Glauben). It is substantiated that this model represents a conceptual compromise between the formal autonomy of the corporate structure and the requirements of substantive justice and creditor protection. The expediency of adapting selected doctrinal approaches and judicial standards of German law for the improvement of Ukrainian corporate and bankruptcy legislation is justified, taking into account the specific features of national law enforcement practice.
Keywords : subsidiary liability, corporate veil, limited liability, creditor protection, corporate autonomy
References:
1. Gesetz betreffend die Gesellschaften mit beschränkter Haftung (GmbHG). URL: https://www.gesetze-im-internet.de/gmbhg/BJNR004770892.html
2. Insolvenzordnung – InsO. URL: https://www.gesetze-im-internet.de/englisch_inso/englisch_inso.html
3. 7BGH, Urteil vom 17. 9. 2001. II ZR 178/99. URL: https://lexetius.com/2001,1224
4. BGH, Urteil vom 16. 7. 2007 – II ZR 3/04 – TRIHOTEL. URL: https://lexetius.com/2007,1959
5. Bürgerliches Gesetzbuch (BGB). § 826 Sittenwidrige vorsätzliche Schädigung. URL: https://www.gesetze-im-internet.de/bgb/__826.html